Shevki and Secretary, Department of Social Services (Social services second review)

Shevki and Secretary, Department of Social Services (Social services second review) [2018] AATA 2566 (5 March 2018)
Division: GENERAL DIVISION
File Number(s): 2017/0607
Re:Ms Emel Shevki
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:5 March 2018
Date of written reasons: 6 April 2018
Place:Melbourne

For the reasons provided during the hearing, the Tribunal affirms the decision under review.
[sgd]........................................................................
Ms Anna Burke, Member
SOCIAL SECURITY – Newstart allowance –– failure to attend appointment with employment services provider – failure to advise of non-attendance prior to appointment – whether reasonable excuse for the failure – penalty payment imposed– decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
Secondary Materials
Social Security (Reasonable Excuse — Participation Payment Obligations) (FaHCSIA) Determination 2009 (No. 1)
Guide to Social Security Law
REASONS FOR DECISION

Ms Anna Burke, Member
6 April 2018
INTRODUCTION

Ms Shevki (the Applicant) is seeking a second tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) to impose a penalty payment for a non-attendance with her employment service provider (Matchworks).
On 17 February 2016 Centrelink advised Ms Shevki via letter that her payment of Newstart allowance had stopped as she had missed an appointment with her employment service provider. Ms Shevki was also told that she may incur a penalty for each day she did not attend an appointment with her provider as required by the Social Security Act1991 (the Act). Centrelink is the service provider for the Department of Social Services.
The application was heard via telephone on 5 March 2018. Ms Shevki was self-represented and Ms Alisa Bramley, government lawyer in the Freedom of Information and Litigation Team, Department of Human Services appeared for the Respondent.
The Tribunal provided an oral decision at the hearing affirming the decision under review. Ms Shevki has subsequently requested written reasons for the decision in accordance with s 43(2A) of the Administrative Appeals Tribunal Act 1975, (The AAT Act) and these are those reasons.
BACKGROUND
On 17 January 2014 Ms Shevki commenced receiving Newstart Allowance.
During the period from May 2014 to December 2015 Ms Shevki was exempt from meeting the activity test requirements on the basis of ill health for 14 months out of a possible 19 months.
On 15 October 2015 Ms Shevki lodged a medical certificate with Centrelink in person which assessed her as incapacitated for all work from 15 October 2015 until 15 December 2015.
On 15 October 2015 Centrelink wrote to Ms Shevki to advise:
Your medical certificate says you are currently unable to work. You do not have to look for work and are exempt from meeting your Mutual Obligation Requirements from 15 October 2015 to 15 December 2015
You must continue to lodge your Reporting Statement when it is due. We may review this decision if your circumstances change, or if we receive new information about your capacity to work or take part in suitable activities
…
You will need to lodge a new medical certificate if you still cannot work after 15 December 2015…
When your medical certificate ends you will need to look for work and continue to meet your Mutual Obligation Requirements.
On 3 February 2016 Matchworks notified Ms Shevki of an appointment at the Werribee office on 17 February 2016 to discuss her ongoing job search requirements and activities or services that will help you to find work. The letter stated:
What if I am unable to attend the appointment at this time? You need to call …. on ….before the appointment with a good reason so that another time can be made. If you do not advise beforehand if you cannot attend, your payment may be stopped even if you have a good reason for missing the appointment. You may also lose some payments. Not complying with requirements like this can result in you losing your income support payment for up to eight weeks if you are deliberately avoiding your mutual obligation requirements.
On 17 February 2016 Matchworks advised Centrelink of Ms Shevki’s non-attendance at her scheduled appointment of 17 February 2016.
On 17 February 2016 Centrelink advised Ms Shevki by mail that her Newstart Allowance had stopped from 12 February 2016 as there records showed that she had missed an appointment with her employment service provider on 17 February 2016.
On 21 March 2016 according to an electronic file note Ms Shevki contacted Centrelink by phone, she was advised no medical certificate had come through and she needed to reapply for new start allowance as payments could not be restored. Ms Shevki advised the call taker she was finding it difficult to understand why her payments were being cancelled and why a new claim needed to be made.
On 29 March 2016 Ms Shevki lodged a medical certificate at the Centrelink office in person, the certificate signed by Dr Ead on 15 February 2016 states that Ms Shevki is unfit for work or study from 15 February 2016 to 15 April 2016 as she is suffering from chronic muscular, upper back, lumbar pain and right eye scleritis. The declaration of the certificate is signed by Ms Shevki and dated 24 March 2016. The electronic file note indicates medical certificate is assessed as not exempt as customer is not incapacitated for all work.
On 29 March 2016 Centrelink wrote to Ms Shevki to advise that she was not eligible to be exempt from her mutual obligation requirements at this time because she was able to do sustainable paid work for at least eight hours a week.
On 8 April 2016 Ms Shevki requested an appeal against the cancellation of her Newstart payments and stated she was sick at the time.
On 15 April 2016 Ms Shevki lodged a claim for a disability support pension.
On 19 April 2016 Ms Shevki lodged a medical certificate for the period 15 April 2016 to 15 May 2016. Centrelink records the medical certificate as assessed as not exempt as customer is not incapacitated for all work.
On 30 April 2016 the ARO affirmed the decision to cancel Ms Shevki’s Newstart allowance as she had failed to attend an appointment with the service provider on 17 February 2016. The ARO notes Ms Shevki asserts that she had attempted to contact the provider prior to her scheduled appointment but also notes that the provider had no record that Ms Shevki had contacted the office to discuss her non-attendance on 17 February 2016.
On 27 October 2016 the Social Security and Child Support Division of the Tribunal (AAT1) set aside the decision of the ARO to cancel Ms Shevki’s Newstart Allowance and directed that:
·Ms Shevki remained qualified for newstart allowance from 12 February 2016 and the determination to cancel the payment purportedly made on 17 March 2016 was incorrect;
·Ms Shevki is subject to a non-attendance failure penalty period from 17 February 2016 to 21 March 2016;
·Ms Shevki entitlement to newstart allowance is to be reconsidered in accordance with the above directions
On 3 February 2017 Ms Shevki sought a review of the AAT1 decision by this division of the Tribunal, as she disagrees with the decision made as Centrelink withheld around two months of payments, however the AAT1 review was only able to correct a portion of this.
ISSUES IN CONTENTIONS
The issues in contentions are whether Ms Shevki:
·is subject to a non-attendance penalty;
·whether she had a reasonable excuse for the non-attendance;
·whether she contacted Matchworks prior to her scheduled appointment; and
·the period of the non-attendance penalty.
RELEVANT LEGISLATION AND ISSUES
Section 593 of the Act outlines the criteria for qualification for newstart allowance:
(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
…
(b) in the case of a person to whom subparagraph (a)(i) applies--throughout the period, or for each period within the period, the person:
(i) satisfies the activity test; or
(ii) is not required to satisfy the activity test; and
(c) if subsection 605(1) applies to the person, at all times (if any) during the period when a Newstart Employment Pathway Plan is not in force in relation to the person, the person is prepared to enter into such a plan; and
(d) if subsection 605(1) or (2) applies to the person, at all times during the period when a Newstart Employment Pathway Plan is in force in relation to the person, the person is prepared to enter into another such plan instead of the existing plan; and
(e) if the person is required by the Secretary to enter into a Newstart Employment Pathway Plan in relation to the period, the person enters into that plan; and
(f) while the plan is in force, the person satisfies the Secretary that the person is complying with the requirements in the plan; and
(g) throughout the period the person:
(i) is at least 22 years of age and has not reached the pension age; and
(ii) is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7); and…..
Section 601 of the Act sets out the activity test required for Newstart recipients:
(1) Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a) actively seeking; and
(b) willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
Section 603C of the Act outlines the criteria for an incapacitated person not required to satisfy activity test:
(1) Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:
(a) throughout the period the person is incapacitated for work because of sickness or an accident; and
(b) the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and
(c) the incapacity is, or is likely to be, of a temporary nature; and
(d) if this Subdivision had not been enacted and paragraphs 593(1)(b), (c), (d) and (e) were disregarded, the person would qualify for newstart allowance; and
(e) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:
(i) the medical practitioner's diagnosis; and
(ii) the medical practitioner's prognosis; and
(iii) that the person is incapacitated for work; and
(iv) the period for which the person is incapacitated for work; and
(f) the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.
(1A) The Secretary must comply with the guidelines (if any) determined and in force under subsection (1B) in deciding the following:
(a) whether paragraph (1)(a), (b) or (c) applies to a person in respect of a period;
(b) whether, for the purposes of paragraph (a) of the definition of work in subsection (2), work is of a kind that a person could be reasonably expected to do.
(1B) The Minister may, by legislative instrument, determine guidelines to be complied with by the Secretary in making a decision referred to in subsection (1A).
(2) In this section:
"work " , in relation to a person, means work (whether full-time, part-time, permanent or casual) that:
(a) is of a kind that the person could, in the Secretary's opinion, be reasonably expected to do; and
(b) is for at least 8 hours per week on wages that are at or above the relevant minimum wage.
Section 603F of the Act outlines the Time limit for exemption--end of person's maximum exemption period:
(1) A person ceases to be exempt, under this Subdivision, from the activity test if the person's maximum exemption period ends.
(2) Subject to this section, a person's maximum exemption period is:
(a) if the person has, whether before or after the commencement of this section, given the Secretary a medical certificate for the purpose of enabling the Secretary to decide whether the person was required to satisfy the activity test--the lesser of the following periods:
(i) the period stated in the certificate as the period for which the person would be incapacitated for work;
(ii) the period of 13 weeks that started or starts on the first day of the period so stated in the certificate; or
(b) otherwise--the period of 4 weeks that started or starts on the day determined by the Secretary to have been the day on which the person's incapacity for work began.
(4) If:
(a) a person is exempt, under this Subdivision, from the activity test; and
(b) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner that states the matters listed in paragraph 603C(1)(e) and is in accordance with the form approved under that paragraph; and
(c) the Secretary is satisfied that the person's incapacity for work will continue after the end of the person's maximum exemption period;
the Secretary may extend the person's maximum exemption period by a period that is not more than the lesser of the following periods:
(d) a period equal to the period stated in the certificate as the period for which the person would be incapacitated for work;
(e) 13 weeks.
(4A) If:
(a) a person was exempt, under this Subdivision, from the activity test; and
(b) within 14 days after the end of the person's maximum exemption period the person gives the Secretary a certificate of a medical practitioner that states the matters listed in paragraph 603C(1)(e) and is in accordance with a form approved under that paragraph; and
(c) the Secretary is satisfied that the person's incapacity for work has continued after the end of the person's maximum exemption period and that the incapacity will continue;
the Secretary may extend the maximum exemption period by a period that is not more than the lesser of the following periods:
(d) a period equal to the period stated in the certificate as the period for which the person would be incapacitated for work;
(e) 13 weeks.
(5) If:
(a) a person is exempt, under this Subdivision, from the activity test; and
(b) the person gives the Secretary written evidence (other than a certificate referred to in paragraph (4)(b)) that the person's incapacity for work will continue after the end of the person's maximum exemption period; and
(c) the Secretary is satisfied that:
(i) the person's circumstances make it unreasonable to expect the person to obtain a certificate referred to in paragraph (4)(b) before the end of the maximum exemption period; and
(ii) the person's incapacity for work will continue after the end of the person's maximum exemption period;
the Secretary may extend the person's maximum exemption period by not more than 4 weeks.
(5A) If:
(a) a person was exempt, under this Subdivision, from the activity test; and
(b) within 14 days after the end of the person's maximum exemption period the person gives the Secretary written evidence (other than a certificate referred to in paragraph (4A)(b)) that the person's incapacity for work will continue after the end of the person's maximum exemption period; and
(c) the Secretary is satisfied that:
(i) the person's circumstances make it unreasonable to expect the person to obtain a certificate referred to in paragraph (4A)(b); and
(ii) the person's incapacity for work has continued after the end of the person's maximum exemption period and that the incapacity will continue;
the Secretary may extend the maximum exemption period by a period of not more than 4 weeks from the end of the previous maximum exemption period.
(6) If:
(a) a person is exempt, under this Subdivision, from the activity test; and
(b) the person has, whether before or after the commencement of this section, given the Secretary a certificate referred to in paragraph (4)(b) before the end of the person's maximum exemption period; and
(c) before the end of the person's maximum exemption period, the Secretary does not satisfy himself or herself that the person's incapacity for work will continue after the end of that period; and
(d) the sole or dominant cause of the Secretary failing so to satisfy himself or herself is an act or omission of an officer of the Department;
the Secretary may extend the person's maximum exemption period by not more than 4 weeks.
(7) This section does not prevent a person ceasing to be exempt under section 603D.
Section 42SA of the Social Security Administration Act (1999) (the Administration Act) outlines the criteria for immediate non-payment of participation payments for certain failures:
(1) The Secretary may determine that a participation payment is not payable to a person if:
(a) the person fails to participate, on a day, in an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person; or
(b) the person fails to attend an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person; or
(ba) the person fails to attend an appointment that the person is required to attend by a notice under subsection 63(2); or
(c) the person fails to comply with a reconnection requirement or a further reconnection requirement.
Section 42SC of the Administration Act outlines Non-attendance failures:
(1) The Secretary may determine that a person commits a non-attendance failure if the Secretary makes a determination under subsection 42SA(1) because of the person's failure referred to in paragraph 42SA(1)(b) or (ba).
(2) Despite subsection (1), the Secretary must not determine that a person commits a non-attendance failure if the person satisfies the Secretary that the person has a reasonable excuse for the person's failure referred to in paragraph 42SA(1)(b) or (ba).
Section 42U of the Administration Act outlines the Legislative instruments relating to reasonable excuse:
(1) The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether a person has a reasonable excuse for committing:
(a) a no show no pay failure (see paragraph 42C(4)(a)); or
(b) a connection failure (see paragraph 42E(4)(a)); or
(c) a reconnection failure (see paragraph 42H(3)(a)); or
(d) a serious failure (see paragraph 42N(2)(a)); or
(e) a non-attendance failure (see subsection 42SC(2)).
(2) To avoid doubt, a determination under subsection (1) does not limit the matters that the Secretary may take into account in deciding whether the person has a reasonable excuse.
Section 42UA of the Administration Act outlines prior notification of excuse
(1) This section applies in relation to the following failures of a person:
(a) a failure to participate, on a day, in an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person;
(b) a failure to comply with a serious failure requirement imposed on the person, where the requirement was to undertake an activity on a day or to attend an appointment, or contact a person, at a particular time;
(c) a failure to comply with a requirement notified to the person under subsection 63(2), where the requirement was to attend an office of the Department, to contact the Department or to attend a particular place for a particular purpose;
(d) a failure to attend an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person;
(e) a failure to comply with a reconnection requirement or a further reconnection requirement, where the requirement was to undertake an activity on a day or to attend an appointment, or contact a person, at a particular time.

Section 5 of the Social Security (Reasonable Excuse — Participation Payment Obligations) (FaHCSIA) Determination 2009 (No. 1) (the Determination) outlines matters to be taken into account in determining if a person had a reasonable excuse:
(1) For:
(a)    subsections 550(2A), 550B(2A) and 576(2A) and 576A(2A) of the 1991 Act; and
(b)   subsection 42U(1) of the Administration Act;
the matters set out in subsection (2) are matters that the Secretary must take into account in determining whether a person has a reasonable excuse.
(2)   The matters are:
(a)    that the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure; and
(b)    the literacy and language skills of the person; and
Example for paragraph (b)
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(c)    an illness, impairment or condition of the person that requires frequent treatment, including an illness that is episodic or unpredictable in nature; and
(d)    a cognitive or neurological impairment of the person; and
(e)    a psychiatric or psychological impairment or mental illness of the person; and
(f)    a drug or alcohol dependency of the person; and
(g)    unforeseen family or caring responsibilities of the person; and
(h)    that the person was subjected to criminal violence (including domestic violence and sexual assault); and
(i)   that the person was adversely affected by the death of an immediate family member or close relative; and
(j)    if:
(i)    the person has been imprisoned for a continuous period of more than 14 days; and
(ii)    the person has been released; and
(iii)    the person was released not more than 28 days before the failure was committed;
the person’s imprisonment or release from imprisonment.
(3)   However, the Secretary must not take into account a matter if the Secretary is not satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement, or the provision of the 1991 Act or the Administration Act, to which the failure relates.
(4)   Without limiting paragraph (2)(a), a person is taken not to have access to safe, secure and adequate housing if:
(a)    the housing to which the person has access:
(i)    damages, or is likely to damage, the person’s health; or
(ii)    threatens or is likely to threaten the person’s safety; or
(iii)    does not provide the person with access to a reasonable level of personal amenities or the economic and social support that housing normally affords; or
(b)    in the circumstances, the adequacy, safety, security or affordability of the housing to which the person has access is adversely affected or may be adversely affected; or
(c)    the person does not have a right to remain, or a reasonable expectation of being able to remain, in the housing to which the person has access.
The Guide to Social Security Law (the Guide) at 3.1.13.90 defines Reasonable Excuse as outlined in the legislation and determination:
General principles
The legislation requires that, before DHS imposes any penalty, the decision maker must establish whether the job seeker had a reasonable excuse for failing to meet their requirements.
However, if:
•the job seeker had a reasonable excuse on the day for failing to attend an appointment or activity,
•it was reasonable to expect the job seeker to have given prior notice of the reasonable excuse to the organisation which arranged the appointment or activity, and
•the job seeker failed to do so,
then the job seeker cannot be taken to have had a reasonable excuse.
Circumstances in which a job seeker cannot be expected to give prior notice of a reasonable excuse
The legislation provides that a reasonable excuse can only be considered a reasonable excuse if the job seeker gives prior notice of it. However, the legislation also provides that this does not apply if the decision maker is satisfied that, in the circumstances, it would not have been reasonable to expect a job seeker to give such prior notice. This provision gives decision makers the discretion to waive a job seeker's requirement to give prior notice of non-attendance in any circumstance where they believe it was unreasonable to expect the job seeker to have done so.
The following are examples of some circumstances in which it would be unreasonable to expect the job seeker to have given advance notice of their inability to attend:
•The job seeker or an immediate or close family member suffered a sudden serious illness or was hospitalised.
•The job seeker lacked access to any means of contacting the provider (e.g. the job seeker had no mobile phone credit and no reasonable access to any other means of contacting the provider, such as a friend's phone or a public phone).
•The job seeker was not made aware of the requirement to give advance notice.
It is important to note that, even though a job seeker may have been physically able to give advance notice, it may still not have been reasonable to expect them to have done so. For example, a parent whose child is seriously ill may have access to a phone but it may still be unreasonable to expect them to think of calling their provider or DHS as relevant.
Even if the job seeker's reason for not attending an appointment or an activity was that they were engaged in another activity at the time which meant that they were fully meeting their requirements (e.g. working) or for which they would normally have been exempt from requirements (e.g. illness), their reason should not necessarily be taken to provide a reasonable excuse for their failure. The circumstances need to be considered on a case by case basis, with the crucial consideration being whether, regardless of the reason for missing the appointment or activity, the job seeker could reasonably have been expected to give prior notice that they would be unable to attend.
Meaning of reasonable excuse
Assuming that the job seeker gave prior notice when it was reasonable to expect them to have done so, the following considerations may lead the delegate to decide that the job seeker has a reasonable excuse and therefore that no failure should be applied.
The meaning of the term reasonable excuse is discretionary but the excuse must be one that an ordinary member of the community would accept as reasonable in the circumstances. Mutual obligation requirements are designed to prepare job seekers for work and therefore a reasonable excuse should also be one that an employer would consider reasonable for an employee who missed work. The job seeker is also required to give prior notice of their inability to attend when it is reasonable to do so, as an employee is expected to.
The failure must not simply be a deliberate act of non-compliance. If the circumstance that prevented the job seeker from meeting their requirement was unforeseeable or outside the person's control, it provides a reasonable excuse. However, this does not necessarily mean that a circumstance that was foreseeable or was within the job seeker's control does not constitute a reasonable excuse.
It is also important to establish that the requirement that the job seeker was supposed to undertake was reasonable, was within their capacity and that the job seeker was notified correctly. If a requirement was not within a job seeker's capacity, they have a reasonable excuse for not meeting it. It should also be remembered that, because a job seeker's circumstances can change, a requirement that was reasonable at the time a job seeker entered into their Job Plan may no longer be reasonable at the time they failed to comply.
When determining if a recipient has a reasonable excuse for failing to meet a requirement, DHS must consider the recipient's personal circumstances. For example, a history of homelessness or an episodic mental illness could have been a factor in the recipient's failure to comply. Administrative tools such as the Vulnerability Indicator (placed on a job seeker's computer record) can be useful in alerting delegates to personal circumstances that could potentially explain a job seeker's non-compliance. The delegate should also be alert for any undisclosed personal issues, particularly mental health issues that could have explained the failure. It will not always be the case that, in a particular instance, such issues were a factor, but DHS must consider this possibility carefully in every case where such issues are evident.
Specific factors to consider
The factors that, as a minimum, the decision maker must take into account are listed in the Social Security (Reasonable Excuse - Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1). These are:
•that the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure,
•the literacy and language skills of the person,
•an illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature,
•a cognitive or neurological impairment of the person,
•a psychiatric or psychological impairment or mental illness of the person,
•a drug or alcohol dependency of the person,
•unforeseen family or caring responsibilities of the person,
•that the person was subjected to criminal violence,
•that the person was subjected to family violence,
•that the person was subjected to sexual assault,
•that the person was adversely affected by the death of an immediate family member or close relative,
•recent release from prison, where the job seeker has spent more than 14 days in prison within the past 28 days.
However, the above list is not exhaustive. When considering reasonable excuse, the decision maker should take into account all factors that may have affected the job seeker's ability to comply. Additional factors to consider could include:
•illness of the job seeker's child or someone for whom they have caring responsibilities,
•disabilities the person may have (including any requirements as a direct result of the disability such as the need for a carer or personal assistant),
•if the person was working at the time they were expected to meet their requirement,
•if the person had a job interview at the time they were expected to meet their requirement,
•lack of availability and affordability of transport,
•lack of availability of child care, and
•lack of awareness of the requirement (e.g. through non-receipt of correspondence).
In addition, the decision maker can interpret any factor included in the above list more broadly if the circumstances of the case warrant it. For example, although an immediate family member generally means a person's partner, father, mother, sister, brother or child, in some cases, it could include any person the decision maker believes should be treated as though they were an immediate family member, such as a member of the job seeker's adoptive or foster family (whether or not the fostering arrangement was formal).
On the other hand, any of the above factors may provide a reasonable excuse only if it had a significant effect on the job seeker's capacity to comply with the specific requirement at the time the job seeker failed to comply and the job seeker had given prior notice of the reasonable excuse to the organisation which arranged the appointment or activity if it was reasonable to do so.
Non-receipt of mail
The Acts Interpretation Act 1901 states that a letter correctly addressed and posted is deemed to have been given to the job seeker at the time at which it would normally be delivered by post. However, deemed delivery does not necessarily mean that the job seeker received the letter and the Acts Interpretation Act provisions do not override the reasonable excuse provisions of the SSAct.
Where the job seeker advises that they have not received the notification, the decision maker needs to assess the reasonable excuse before making a decision to apply a failure.
This should include consideration of all of the following:
•previous attendance and compliance history,
•the explanation of the job seeker,
•whether other documented contact attempts such as SMS messages, phone calls and face-to-face reminders were made,
•whether a recent change of address may have meant that the job seeker did not receive the notification,
•the job seeker's accommodation circumstances and possible diversions of mail, and
•whether the job seeker has a history of mail disturbances and what steps they have taken to secure their mail.
Medical evidence
If a person claims to have been sick and unable to attend a particular activity or appointment then it is preferable that a medical certificate verify the person's illness. However, in some circumstances it will be unreasonable to ask for one. It is common that a short illness such as a cold or virus may not require a visit to the doctor. In many cases, it may be obvious from talking to the person that this is the situation. If a person is ill and advises their employment services provider ahead of the requirement time, the provider can reschedule the requirement and should not report the failure (unless the provider has reason to doubt the genuineness of the illness). However, the delegate should not accept without question the excuse of illness if the person has a history of missing requirements due to minor unverified illnesses without advising their employment services provider ahead of time.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to s 37 of the AAT Act, referred to as the “T documents”. Additional medical reports and statements were provided by Ms Shevki.
The Guide clearly outlines that the legislation requires that, before Centrelink imposes any penalty, such as incurred by Ms Shevki, the decision maker must establish whether the job seeker had a reasonable excuse for failing to meet their requirements.
However, if:
·the job seeker had a reasonable excuse on the day for failing to attend an appointment or activity,
·it was reasonable to expect the job seeker to have given prior notice of the reasonable excuse to the organisation which arranged the appointment or activity, and
·the job seeker failed to do so, then the job seeker cannot be taken to have had a reasonable excuse.
Reasonable Excuse
Ms Shevki advised the Tribunal she had a specialist appointment on 17 February 2016 which prohibited her from attending the scheduled appointment with her service provider. Ms Shevki provided the Tribunal with a copy of the certificate of attendance at the Eye and Ear Hospital which states:
Ms Shevki has attended this hospital today Wednesday, 17 February 2016 as a patient and left at 5:05 PM.
Ms Shevki advised the Tribunal she had seen a specialist rheumatologist on 17 February 2016 at the eye and ear hospital as part of the ongoing monitoring of her right eye scleritis/iritis. Further, she claims she had been diagnosed with shingles and the specialists advised her she was contagious and should not leave her home.
Ms Shevki provided the Tribunal with a medical certificate from Dr Venkata Suman Musku dated 10 July 2016 which states that Ms Shevki was unfit for work or study from 16 December 2015 to 14 February 2016 and had been diagnosed with shingles in February.
Ms Shevki was adamant at the hearing that she had contacted Matchworks prior to the appointment to reschedule as she knew she could not attend as she already had a specialist appointment booked for that day.
The representative of the Respondent accepts that Ms Shevki’s appointment at the outpatients Department at the Eye and Ear Hospital on the same day as the scheduled appointment at Matchworks could be accepted as a reasonable excuse if notice of inability to attend had been given prior to the appointment.
Prior notice of non-attendance
Ms Shevki advised the AAT1 hearing and affirmed at the hearing that she:
(a)Did not receive the letter regarding the appointment from Matchworks as she could not receive mail from Centrelink or Matchworks as her letter box had been stolen and that she had request that all mail be sent to her PO Box. Further she stated she had requested all corresponded be by email and for her to be advised by email that mail was waiting for her at the PO Box, as she was too ill to simple check the box on a regular basis.
A Centrelink electronic file note 8 April 2016 notes that Centrelink records indicate that Ms Shevki has a mailing address which has been registered with Centrelink since May 2014 and there has been returned correspondence. The Centrelink file note 10 May 2016 records indicate that Ms Shevki contacted Centrelink to advise she does not have a letterbox and needs all further correspondence regarding claims to be sent to a PO Box.
(b)Had contacted Matchworks prior to the scheduled appointment to advise she could not attend because of her pre-arranged specialist appoint at the Eye and Ear Hospital.
A Centrelink electronic file note 28 April 2016 notes that Centrelink records indicate that Ms Shevki was contacted on her mobile phone by the ARO to discuss cancellation of the Newstart Allowance. The file note states:
…cust [sic] said that she has medical condition that are impacting on her ability to engage hence why she had lodged a DSP claim. Cust sadi [sic] she advised the provider that she could not attend the appt on 17/02 and this appt was not rescheduled. Cust advised that everytime she contacts they tell her consultant are in meeting. (I contacted Matchworks and were told that all consultants are with clients). I went through the contact cust had with the dept and explained that her payment has auto cancelled because cust has failed to re-engage within 28 days. Cust was insistent that she has contacted the provider office prior to the appt to advise she could not attend the appt. Cust was also insistent that she had contacted the dept prior to cancellation and yet there is no record of this. I explained this to the cust that the first contact the dept had was on 21/03/2016 and she was advised to reapply for NSA and I asked why she did not do this and she said that she went into the local office and was told that they would restore NSA as a payment whilst looking at her claim for DSP. I again asked why she did not reapply and what has she had done for money and she said that she has loaned money from friends. Cust said that there is a long wait times with the dep5t [sic] which indicated cust had called and then hung up. Cust also said that she doesn’t have time to attend appts she has to walks for 1 hr each day and exercise for another hr and do other things for an hr. She also advised she does not sleep well, due to the pain from her lower back.
28/4/2016 1.56 Phoned Matchworks and spoke with Sarah and she advised there is no notes that the cust has contacted. Sarah advised that they had attempted to contact back in October 2015. They also noted that there is no record of any contact from customer.
Ms Shevki claimed her daughter had heard the phone called and provided a signed but undated statement to that effect.
The Respondent advised the Tribunal they had offered to summons Ms Shevkis’s phone records to clarify her contention she had called Matchworks prior to 17 February 2016 but she had declined this offer as she said she had not been using her own phone at the time as it was broken.
(c)Had on numerous occasions prior to this had issues with her medical certificates, which she contented she always submitted after the event (as in this case which was three months after her last certificate had ceased) and had always managed to sort out the issue over the phone with Centrelink. She was at a completely loss to understand why her medical certificates where now considered to be non-compliant and felt this had been the issue which had resulted in her Newstart being cancelled and receiving a penalty period for failure to attend a scheduled job provider appointment.
(d)Did not believe she was obliged to attend Matchwork’s appointment as she has numerous medical issues, had a specialist appointment for the day and was additional suffering from shingles at the time.
In her written statement Ms Shevki states: Regarding evidence of me attending a specialist appointment on the 17th February 2016 the clinic faxed a letter to the 1300 number that my medical certificates are faxed to but Centrelink claim they didn’t know where that letter went to. I explain this to Sharon.., however she didn’t even ask if I could get her a letter to confirm this. I have obtained another letter confirming this appointment…
Ms Shevki provided a medical certificate dated 10 July 2016 which states she had been diagnosed with shingles in February.
(e)Has received other non-attendance reports that these have been sorted out without loss of payment as they were classified as missed appointments because she had medical certificates covering the period.
In her written statement Ms Shevki states: I cannot remember if I had appointments 3/4 2014 or 9/10 2015 because these were so long ago. If appointments were missed then why didn’t Centrelink say something at the time and bring it to my attention. March/April 2014 was when I became extremely unwell and have been unwell ever since submitting medical certificates continuously. I have always communicated with my workplace provider and Centrelink telling them I’m not well enough to attend appointments. There seems to be a medical certificate missing from August 16 2015 - October 14 2015. Obtaining this at the time would not have been a problem if Centrelink let me know. Is it even legal for a doctor to now backdate a certificate to almost one year ago? If so let me know and I will ask him to. I didn’t suddenly make a miraculous recovery from 16/8- 14/10 2015, then go back to being unwell. The same applies for April 2014 since certificate seems to have been started from May 2014. It there is a problem with a missed appointment in April Centrelink would have and should have said something at the time and it would have been fixed then, over 2 years ago, rather than bringing it up now for the first time. Again if it’s legal for doctor to backdate to over 2 years ago, let me know and I will ask for a certificate. My doctors are well aware of my ongoing health issues.
(f)Had on numerous occasions attempted to contact Centrelink about her payments being stopped but had had no success.
In her written statement Ms Shevki states: After a number of failed attempts getting through to Centrelink due to waits of 1hr 30 minutes to 1hr 45 minutes I eventually got through on the 21st of March but things were not sorted out so I went into the Werribee Centrelink office on the 24^th of March to have everything sorted/fixed and give them another medical certificate. They took the medical certificate and said that everything would be fixed and I didn’t need to sit down and see anyone. This was not done. All of this was explained to Sharon…. Sharon… claims that Centrelink sent a letter on the 29^th March 2016 to my home address. Centrelink were repeatedly told that we didn’t receive mail because our letter box was stolen. Centrelink were very much aware that I depended on my online account from my letters, however they stopped online communication and stopped my access to my online account.

The Respondent submitted that the available evidence does not support a view that Ms Shevki gave prior notice of her inability to attend the appointment with Matchworks on 17 February 2016.
The member at the AAT1 found:
27. Mrs Shevki agreed she did not provide a new medical certificate following the expiration of exemption period on 15 December 2015. While the Tribunal acknowledges her submission that she did not do so because she had been asked by Centrelink to provide a new medical certificate, the fact remains she has not provide a new certificate within the 14-day grace period after the expiration of her maximum exemption period on 15 December 2015 … the Tribunal must conclude that Mrs Shevki was required to satisfy the activity test from 16 December 2015.
…
35. Overall, the Tribunal was not reasonably satisfied based on the evidence available that Mrs Shevki notified Matchworks prior to the appointment on 17 February 2016 that she was unable attend due to a specialist appointment. The Tribunal considered it plausible she attempted to contact but was not able to speak to a consultant and did not persist based on a belief she ought to be exempt on medical grounds and that she could produce a medical certificate for the appointment that day.
…
48. The Tribunal was not persuaded Mrs Shevki made contact with Matchworks or Centrelink prior to 21 March 2016…
CONCLUSION
The Tribunal found that Ms Shevki was not exempt from the activity test on 17 February 2016 as she had failed to submit a medical certificate at the expiration of the maximum exemption period 15 December 2015. Providing a medical certificate three months later on 29 March 2016 could in no way satisfy the legislative requirements.
The Tribunal accepts that Ms Shevki’s appointment at the Eye and Ear Hospital on the same day as the scheduled appointment at Matchworks is an acceptable reason to seek to reschedule an appointment with her service provider; however it was not a reasonable excuse for failing to attend on the day without prior notice.
The Tribunal found Ms Shevki’s litany of excuses for not attending her scheduled appointment with Matchworks as simply implausible. The Tribunal found Ms Shevki had not contacted Matchworks prior to her scheduled appointment on 17 February 2016 and as such was subject to a non-attendance penalty from 17 February 2016 to 21 March 2016 being the date she finally reconnected with Centrelink.

DECISION

46. I certify that the preceding 45 (forty-five) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke, Member

[sgd].......................................................................
Associate
Dated 6 April 2018

Dates of interlocutory hearing 5 March 2018

Applicant Self-represented

Advocate for the Respondent

Solicitors for the Respondent

Ms Ailsa Bramley

Department of Human Services,
Freedom of Information & Litigation Branch

[2018] AATA 2566

5 March 2018

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Appeal

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction